Actual Malice For Failing To Remove?
I suspect that even readers who are not lawyers (and admittedly, that’s mostly just my family members) have heard the term “actual malice” at some point. That’s the standard that public figures need to establish to win a defamation suit. In other words, if you publish false information about a public figure, you’re not liable unless you knew it was false when you published it. The idea is to protect free speech and promote free wheeling comment on matter of public interest. The U.S. Supreme Court adopted this standard in 1964. And in those days, a newspaper or TV station didn’t have to worry much about the “shelf life” of a story. Once it was published it, was out the door. But now that just about every newspaper and TV station operates a Web site, and keeps stories available, the question arises, do those entities have a responsibility to remove a story once they learn that it’s clearly false? Here’s an interesting post that says they do. In other words, inaction in the face of known falsity may be worse than writing it in the first place. One caveat here. Section 230 of the federal Communications Decency Act protects a Web operator from liability based on third party content. But in the case of content that the newspaper or TV station supplied, that protection is unavailable. But if it’s not content supplied by a third party, it may be a good idea to take it down.